WASHINGTON (May 3, 2009): The Supreme Court sent Janet Jackson’s breast back to a lower court today. The Justices reviewed a ruling that CBS was not liable for the 2004 incident in which Ms. Jackson’s breast was exposed during Super Bowl half-time in what came to be known as a “wardrobe malfunction.” The U.S. Court of Appeals for the Third Circuit in Philadelphia was instructed by the high court today to review the case again.

The Phily court threw out the fine last year on CBS’s argument that the Federal Communications Commission arbitrarily had redefined its indecency policy. The Supreme Court justices instructed the lower court to consider reinstating the FCC’s $550,000 fine against the network and its affiliates over the incident. The decision follows a 5-4 vote last week by the high court that upheld the FCC’s determination that the fleeting use of certain expletives constituted an indecency violation.

During Super Bowl half-time in 2004, Ms. Jackson was performing with Justin Timberlake, who grabbed her costume at one point in the show and pulled off a portion, exposing her breast. The FCC received more than 540,000 complaints, and fined CBS and the stations that aired the program--virtually all of them, since the Super Bowl is the most lucrative telecast of the year.

The case focused on two incidents included in a March 2004 FCC dragnet decision to fine broadcasters $4.5 million for apparent indecency. In one, Cher dropped the F-word during a live broadcast of the 2002 Billboard Music Awards on Fox, and Nicole Ritchie let fly an S-word on the same program the following year. Both were aired on Fox.

Under federal law, indecent material must “describe or depict sexual or excretory organs or activities… [and] the broadcast must be patently offensive as measured by contemporary community standards for the broadcast medium.”

The FCC was under the direction of former Chairman Kevin Martin when it issued the ruling against fleeting expletives. Such interjectory use was given a pass by his predecessor. Under Michael Powell, the FCC determined that Bono’s use of an exclamatory F-word on the 2003 Golden Globe Awards had no sexual connotation. The networks challenged the FCC’s sweeping indecency fines on several premises, including the First Amendment. The U.S. Court of Appeals for the Second Circuit in New York ruled that the FCC had insufficient grounds to levy fines for spontaneous cursing. The lower court did not take up the constitutional question. The high court justices have now directed it to do so.

Chief Justice John Roberts, Justices Anthony Kennedy, Clarence Thomas and Samuel Alito concurred with Justice Antonin Scalia, who wrote the decision. Dissenting Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer said the FCC failed to explain why it changed its policy on fleeting expletives. Scalia said the FCC’s course correction was appropriate.

“The agency’s reasons for expanding the scope of its enforcement activity were entirely rational,” Scalia wrote. “It was certainly reasonable to determine that it made no sense to distinguish between literal and nonliteral uses of offensive words, requiring repetitive use to render only the latter indecent. As the commission said with regard to expletive use of the F-word, ‘the word’s power to insult and offend derives from its sexual meaning.’

“And the commission’s decision to look at the patent offensiveness of even isolated uses of sexual and excretory words fits with the context-based approach we sanctioned in Pacifica,” the original 1978 case defining indecency. “Even isolated utterances can be made in ‘pander[ing,] . . . vulgar and shocking’ manners and can constitute harmful ‘first blow[s]’ to children. It is surely rational if not inescapable to believe that a safe harbor for single words would ‘likely lead to more widespread use of the offensive language.’”

Interim FCC Chairman Michael Copps hailed the decision in an official statement.

“Today’s Supreme Court decision in Fox is a big win for America’s families. The court recognized that when broadcasters are granted free and exclusive use of a valuable public resource, they incur enforceable public interest obligations. Although avoiding the broadcast of indecent language when children are likely to be watching is one of those core responsibilities, few can deny the blatant coarsening of programming in recent years. The court’s decision should reassure parents that their children can still be protected from indecent material on the nation’s airwaves.”

The Progress & Freedom Foundation, a D.C. think tank supported by CBS, NBC, Fox parent News Corp., ABC parent Disney, Google, Microsoft, Comcast and others, said the decision was a “blow to the First Amendment.”

“While the court decided this case on purely procedural grounds, its failure to address the constitutional issues at stake will leave the First Amendment freedoms of both media creators and consumers in this country uncertain until another case winds its way up to the court, which could take years,” PFF Senior Fellow Adam Thierer wrote. “Practically speaking, as Justice Thomas noted, what’s the point of continuing to apply a censorship regime to one of the oldest mediums--broadcast TV and radio--when kids are flocking to unregulated mediums in large numbers? At this point, we’re doing little more than protecting adults from themselves and destroying over-the-air broadcasting in the process.”

The NAB’s Dennis Wharton noted that broadcasters have been and will continue to be self-regulating.

“Regardless of today’s opinion, broadcasters will continue to offer programming that is reflective of the diverse communities we serve. Nonetheless, we’re disappointed the court majority seemingly failed to understand the need for clear and consistent regulatory policies, especially in light of the various ways audiences now receive broadcast programming. We continue to believe that voluntary self regulation--coupled with blocking technologies like the V-chip--is far preferable to government regulation of program content, and we question why speech restrictions should apply only to broadcasters.” -- Deborah D. McAdams

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